Stefan Kimpton

The plaintiff moved for summary judgment in a wrongful dismissal action arising from a temporary lay-off that was not expressly permitted by the written employment contract.

The court held there was no genuine issue requiring a trial, but rejected the plaintiff's position that the lay-off became constructive dismissal either when imposed or when counsel later purported to treat it as such.

The court found the plaintiff had acquiesced in the lay-off, remained in the employment relationship when the employer recalled him to full-time work, and could not then characterize the lay-off as constructive dismissal.

In the unusual circumstances, the court held the written notice provisions had effectively been displaced and awarded wrongful dismissal damages only for the period from the lay-off to the date the plaintiff commenced higher-paying replacement employment.

Following a summary judgment in a wrongful dismissal action under the simplified rules, the plaintiff sought costs of over $20,000.

The plaintiff recovered $13,076.92, which was less than half of the damages sought, and had abandoned a $50,000 punitive damages claim at trial.

The defendant argued no costs should be awarded as the recovery fell within Small Claims Court jurisdiction.

The court declined to order no costs but, applying the principle of proportionality and noting the defendant's mixed success, fixed the plaintiff's costs at $5,000 all-inclusive.